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The right to health in our legal system is constitutionally recognized art. 32 seconds that: "The Republic protects health as a fundamental right of the individual and collective interest, and guarantees free medical care to the indigent. Nobody can be forced to a specific treatment if not for the law. The law may in no case violate the limits imposed by respect for the person. " It is clear that whoever causes physical disabilities, permanent or not, is subject to criminal laws, and required by law to compensate for damage caused.

The right to health, regardless of the ability of the subject, is extended to everyone, even to the unborn child who, from the moment of conception is the protection of the law. In fact, the law recognizes the right of peaceful baby to be born healthy, but , however, denies the right of not being born se non sano. Ciò si traduce, ad esempio, nella circostanza che, poichè la madre ai sensi della Legge 194/1978 potrebbe optare per un aborto magari in presenza di gravi malformazioni del feto, qualora il medico non la metta al corrente di questa malformazione è tenuto al risarcimento solo nei confronti della madre e non anche del bimbo nato malformato. Non si può invocare, infatti, il risarcimento per essere nato, seppure malformato. Se, invece, la condotta imperita del medico ha causato lesioni al feto nel periodo prenatale, il soggetto che con la nascita abbia acquistato la capacità giuridica potrà far valere la responsabilità del medico.

Fondamentale diritto di tutti i cittadini è l'autodeterminazione ai trattamenti health (Law 833/78 art. 33, Law 180/78, etc...) This means that everyone is master of his own health and, therefore, free to submit or not to care, treatment or surgery. The doctor can not force the patient to treatment, but is merely required to put in conditions to take an awareness of the clinical implications related to his choice. However, in some cases, when the interest in health care is not just head to the individual but involves all citizens or a large number, the law provides the mechanism for the mandatory treatment regardless of the party, requiring, therefore , a limit to the principle of self-determination. Such cases are logically understandable, think of having compulsory vaccination antipoliomelitica, SARS, and the compulsory vaccination against tetanus, all taxes and provided by special law. Therefore, outside of exceptional circumstances, the patient is free to choose and the doctor is obliged to respect the will of the patient. The doctor has, as mentioned, only the obligation to inform the subject about the nature of the disease, which can result in Consequences, risks associated with the treatment alternatives possible, and the most appropriate therapy or surgery to heal. This information, with clear expression and written so long and not too technical, the informed consent form to which every doctor must to respect the interest of the patient. Informed consent must be current, and voluntarily given and should be provided, except in case of impossibility, from the rightful owner. If this is in the inability of medical intervention but has to wait if this is necessitated by the urgency the healthcare provider may refer the subject to surgery, given the presumption of consent as well as the state of necessity under Article. 54 cp Scrimin that conduct.
Moreover, not infrequently the case of Jehovah's Witnesses who did not consent to blood transfusions. However, this disagreement must be present to implement it. In fact, in a clinical picture changed (eg the patient under the knife anesthetized who urgently need a transfusion) dissent previously provided to the blood transfusion is less because it is not present.

In the case of legal incapacity to give consent (eg lower) the same is provided at least one parent without the refusal of both a barrier to health care.
As for the medical liability, it is already settled in giuriprudenza that it is not tort liability, and contractual, but is contractual and, therefore, is part of art. 1218 cc In fact, between patient and doctor, as well as healthcare facilities, it establishes a contractual relationship called social contract. The citizen when he addresses to a private hospital or nursing home (the difference is not important or decisive) has the right to be cared for and use of medical services therein. The source of the report is an atypical contract performance corresponding protective effects against the third party, from which, on payment of the payment occur against the nursing home obligations Latu sensu hotel (availability of atterezzature, beds, instruments, medical staff and paramedics)
The burden of proof, since the relationship is contractual, it is incumbent on public health facility or private performance of the exact test, while the patient only has to prove the relationship with the structure and the failure to comply with health and qualified, that is what is the efficient cause of damage.
The limitation of damages is ten years.